A Russian and Chinese approach to justice?

An article about the psychiatric assessment of Norwegian mass murderer Anders Behring Breivik got me wondering about a couple things, one entertaining and the other, not so much:

“The psychiatrists warned that Mr Breivik was likely to attempt further attacks, including suicide bombings”

Suicide bombings? Plural? As it has been claimed he worked alone, I am curious how he could carry out more than one suicide bombing.

But less flippantly, I cannot help wondering if the only reason this coldly calculating man is being deemed ‘insane’ is that is the only way the Norwegian state never ever have to let him out, given that Norway apparently has no ‘life sentence’ in which ‘life means life’… so the only way to put him away forever is to declare him insane and thus lock him up in a loony bin until he dies.

He may well belong in a small room for the rest of his life but using the much loved Soviet, Russian and Chinese approach of expedient psychiatric assessment to achieve it may reveal a lot about modern Norway.

November 30th, 2011 |

30 comments to A Russian and Chinese approach to justice?

Norway does not have “life means life” sentences, it does however have preventive detention which may be imposed on a perpetrator who has served his full sentence but is still deemed a danger to society.

John Galt, I don’t doubt that putting him in a box for life is just. (Personally I would prefer to put him in a box dead, but that is not the point.)

Putting the effect on Breivik to one side, what is the effect on Norway, if, as Perry postulates, they have taken to deciding the punishment first and then choosing a psychiatric diagnosis that allows them to inflict this punishment? In fact it is even worse than that: they can see what punishment must be imposed to satisfy public opinion and then they tell a tame psychiatrist to make a diagnosis such that Breivik is to be given “treatment” that is actually a punishment but pretends that it is just “treatment”.

Once the precedent has been set in the extreme case of Breivik, will the same procedure be applied to people far less guilty, or even innocent but unpopular people. “Hard cases make bad law” as the saying goes.

It may all be moot. If Lukas is correct in his comment above then the Norwegian authorities do have a way of putting him away forever, which suggests that their opting to define him as insane reflects a sincere belief that he is insane.

But if Perry is correct, far better that the Norwegian legislature drop everything and do whatever it takes to pass a new law permitting true life imprisonment than they degrade their whole justice system and put at risk everyone who can plausibly called insane.

1. Determine him sane (despite evidence to the contrary) and try him, but if found guilty be limited to sentencing him to x-years but hold him indefinetely on preventative grounds. This further imprisonment could be challenged by a lawyer on the grounds of unlawful detention, resulting in his release.

2. Determine him insane (as substantial evidence suggests) try him so that the evidence of his insanity is ‘read into the public record’, but find him innocent on the basis of insanity. Lock him up until he is cured and no longer danger to the public – theoretically he could be cured, but his release would be dependent upon a medical board determining him sane, which is possible, but unlikely.

From the standpoint of both the public need to have this maniac prevented from further attrocities the second has the greater likelihood of success as it is easier to continue to hold someone on mental health issues than for legal issues related to public protection.

Given a toss between the two, I’d also have gone for essentially “Guilty, but insane” – lock him up and throw away the key.

The guys a total nutjob, as evidenced by his character and photo’s before the attack as much as the events of the 2 attacks themselves (the bombing and the shootings).

Nope. I would not classify that as an indication someone is a total nutjob at all. Just killing lots of people does not in and of itself indicate insanity.

This guy quite clearly laid out his motivations for doing what he did and whilst I do not share his conclusions, the logic of his position was both, er, logical and indicative to me of a coherent mind. He knew exactly what he was doing and why he was doing it. That is not insanity. Evil, maybe. But insane? Not at all.

John, FWIW the Anglo-Saxon rule (recognizing that Norwegian law may be different) is not to find someone “innocent on the basis of insanity”, but rather to find him “not guilty by reason of insanity”. There is a substantial difference, in that the insane person is not declared innocent of the crime, but rather because of his insanity he is deemed incapable of forming the requisite mens rea (bad intent) to be found guilty. While I have little doubt that Breivik is “insane” as you and I would define it, I have difficulty believing that he was incapable of forming mens rea; he seemed to know exactly what he was doing and why he was doing it, and he planned meticulously. So the “insanity defense” would likely be unavailing if he ever went to criminal trial. Thus he would be convicted and get the usual sentence of “less than life”. Even if lucas is correct, the subsequent imposition of “preventative detention” would rely upon the vagaries of future adjudicators, and it certainly would not surprise me if the eventually let him out. Declaring him “insane” now (in a clinical if not legal sense) offers the possibility of lifetime institutionalization. It’s probably the best solution available.

Of course, my preference would be to simply execute him, but if the Norwegian people want to pay to maintain him for the rest of his life that’s their business.

I surely understand the numeric objections to the death penalty (costs too much, non-zero odds of getting the wrong person) but if you actually do have the true culprit of a crime like what Breivik committed, what is the justification for the state working to maximize the length of that person’s life?

I wonder how an anarcho-capitalist society would handle this crime and problem? He would probably have been killed early on, since they take self-defence seriously (and most people would have some arms on them), but if he had been wounded and captured, would ‘his’ insurance company have gone bankrupt settling claims? And who would determine that he was ‘insane’- and what would be the punishment?

Isn’t it preferable to proclaim him mad than contemplate the alternative?

Not really.

Were the architects of the world’s various genocides ‘mad’ because they did terrible things? Because if the answer is ‘yes’, then presumably they should not be held accountable for their actions as they cannot be truly be ‘guilty’. I think that would be a great mistake.

Perhaps we should go back to an eye for an eye and a tooth for a tooth. It has the virtue of simplicity and the punishment fits the crime. And it is surely simpler than relying on mind reading and political psychiatry.

If there is any killing of criminals to be done, it should be by people acting in self defense. While I have no moral or philosophical problem with the death penalty, I have a huge problem handing that power over to politicians. Despite all of the lip service given to “jury of peers“, etc, the system is planned, supervised and staffed by politicians. If you wonder at what perverse incentives of a death penalty will lead a truly utilitarian government to do, read this.

When Breivik first acted, I was, like I presume many here, troubled by the superficial likeness of much of what he believes to what I believe. But something is clearly very different. What? I occasionally, along with others here, get grief for being obsessively devoted to principles. Many consider such an obsession to be a sign of heartless insensitivity. No. Principles are the framework in which one judges and restrains one’s own actions. Principles are a restraint, not a license.

The evil in Breivik is the product of his complete utilitarianism. He believed, and presumably still believes, that the end justifies the means. He demonstrates better than I could have imagined prior to his killings, how utilitarian actions, the use of means justified by goals rather than guided by principles, are themselves the source of evil. Isn’t Breivik just a variation of the leftist utilitarians building their utopia and killing a few millions in the process? Certainly there is no guarantee that a particular set of principles are good, they may well be evil. But all pragmatic utilitarianism has the potential to evil. Breivik’s case highlights the difference between principled action and utopian action; between choosing principled means or utopian ends. It is not possible to prioritize both. One must choose either principled means or utopian goals.

To commenters eager to see Breivik judged ‘insane’ and for ‘insanity’ to be treated as something different from ‘crime’ and a prior marker for ‘crime’, I urge you to reread how Breivik’s mother knew he had gone ‘insane’.

“He must have been insane, he became so different,” she is quoted as saying in the psychiatric evaluation submitted to the Oslo court on Tuesday, which has been leaked to Norway’s Verdens Gang newspaper.

“It is hard to believe that these things happened. It’s still hard to believe.”

Shortly after the 32-year-old moved back in with her that year, he began to behave erratically, she told Torgeir Husby and Synne Soerheim, the two psychiatrists who carried out the interviews.

Mrs Behring described how her son became obsessively interested in politics and history.

“He was totally beyond reason and believed all the nonsense he said,” she said.

“Obsessively interested in politics and history“. Noticed they pushed his genuinely crazy behavior down the page (or perhaps out of the article entirely) and lead with his ‘obsessive’ interest in politics and history. Do any of you really think we in the liberal democracies are safe from politicization of the definition of ‘sanity’?

The decision of the Norwegian authorities reflects the overall loss amongst western elites of any ability to judge the scope of crime, never mind punish. The comments on this blog, in some cases at least, simply confirming this analysis. Unless we re-discover our capacity to determine what is right and wrong and the find the will to defend those judgements we will go on tolerating what will destroy us all. Frankly whether he is insane or not is irrevelevant, shoot the swine, that is what he deserves

Once again, post-modern, feel-good ideas about crime and punishment stub their toes on the real world – and find that it hurts.

The Scandinavian countries have led the world (according to themselves) in concepts of penal reform. Their prisons are models of rehabilitation but their whole ethos is to move away from such medieval, barbaric, American ideas such as incarceration. When people behave badly, it’s not actually their fault – it’s their childhood, or the pressures of a capitalistic society, or their problems with drugs or alcohol. There’s no such thing as a bad person, there’s just people who do bad things. What they need is counselling, and maybe some time collecting trash or working at the local animal shelter, to show them the error of their ways. Pretty soon, they’ll all be singing Kumbaya torgether, and they’ll never be bad again.

Then along comes a Brevik, who is obviously, grandiosely, floridly insane and a real and enormous danger to the public. Anyone with a functioning synapse can see that he needs to be cuffed to something heavy for the rest of his natural life.

And the Norwegians turn around and say ‘O sh*t – we can’t do that anymore. We “improved” our penal system to the point where we have no legal mechanism to lock somebody away for life. We can only sentence them to a few months of prison five-days-a-week, and they have rights to conjugal visits and trips to the store and football games – and he has the same rights as anyone else!’

And then the Norwegian prime minister (or whatever they have there) turns to the Norwegian justice minister (or whatever they have there) and says ‘Oh yeah? Well, you find a way – by lunchtime. Becasue this chucklehead can never be allowed to set foot outside a locked facility ever again. Ever. Let me know how you manage it.’

The sad part is that they have not the self-realization to take away the real-world lesson from this – that the world does in fact contain a few very bad people who need to be handled in a draconian manner for the good of the rest of us. Brevik will be treated as a ‘unique’ exception. Until the next one.

Not wanting the threadjack or anything, but I wonder whether our good friend Sunfish might care to comment on the arrest of retired Araphoe County sheriff Patrick Sullivan on charges that he offered to trade methamphetamines for an intimate service from a male criminal. Could we perhaps hope for a more-convincing sign that the War of Drugs, she be lost?

Who says this approach is strictly “Soviet-style”? I don’t know what the other 49 states are doing, but in Washington, USA, this is how we’ve dealt with sex offenders for at least 20 years: “civil commitment”.

Then along comes a Brevik, who is obviously, grandiosely, floridly insane and a real and enormous danger to the public.

Real and enormous danger to the public… clearly. Insane? Well no. He sees himself as a soldier fighting in a war… and whilst he is correct there is a culture war going on and he is even correct as to much of its character, it is not the kind of war that his kind of mass murder really fits into because it is a figurative war, not a literal war… but then that is how I see it. The ways he sees it is mistaken but it is hardly insane. It is extreme, not crazy.

I do not agree with many aspects of of his collectivist world view but he understand what he did and has a perfectly logical and coherent set of reasoning behind it all. Just as a suicide bomber is not ‘insane’ when he blows himself up on a bus and slaughters many civilians, this guy is similarly not ‘insane’. Call him mistaken, call him ruthless, call him evil, call him anything except… insane… cos he ain’t, at least not in the sense that should ever be argued as such in a court of law. He most certainly did and still does have the requisite ‘mens rea’ to be held fully culpable for his actions

I agree Perry, and that is why the Norwegians seem to have twisted any normal legal definition of insanity, because if he was tried and found guilty of murder, he’d be out in 20 years at most. This is, of course, a failure of their political system, in doing away with the possibility of whole life imprisonment, which is what a criminal like Breivik deserves. However, to compund that failure by corrupting the the normal definition of insanity opens another can of worms, and may well have some very unpleasant consequences down the line.

To put it in non-scientific terms, this guy is “evil-crazy”, just like most of the 20th centuries other mass-murderers. Were Hitler and Stalin crazy? Sure, in the sense that they believed some idiotic things (like Marxism) and then were willing to slaughter millions in the furtherance of their beliefs. Since we can’t imagine how a sane person would do that, we call them “crazy”, but we don’t mean that they weren’t coldly and clearly calculated actions.

The insanity defense is there for those who are “crazy-crazy” – voices in the head, etc. Nobody argues that the top Nazis or Serbs or Hutus or whatever belong in a padded room, even though their crimes were of such as a scope as to be “insane” to us, and the same should apply to Behring – he’s evil-crazy, not crazy-crazy.

I don’t like the equation that evil = insane. Some people just want to watch the world burn. It may be irrational to us, it may be unconscionable, but that isn’t enough to make them insane.
It’s enough to make them evil. And they should be treated as such.

The only thing ‘insane’ here is a ‘justice’ system that can’t hang him for the cold-blodded murder of 77 innocent people. A primary function of government is to protect us from predation. And in this, the current western political elite have let us all down. No suprise really – they have screwed up pretty much everything they have touched with their idiotic, infantile, idealized, ivory tower worldview.

While I agree with the idiocy of a judicial system that cannot even pretend to protect its people from the actions of criminals; there is another aspect of this that I think is as much on the minds of the “Guardians of all that is right, pure, and Socialist” as the imperative to protect their collective tuchi from the public reaction if he should ever be released.

Consider that if he is charged with the crimes committed, he will have to be tried. Even if there are provisions for in camera trials and the sequestration of all the proceedings in Norway; there is no way to guarantee that any pleas and justifications that Breivik would offer would not eventually become public knowledge.

As Mr. de Havilland notes:

He sees himself as a soldier fighting in a war… and whilst he is correct there is a culture war going on and he is even correct as to much of its character, it is not the kind of war that his kind of mass murder really fits into because it is a figurative war, not a literal war… but then that is how I see it. The ways he sees it is mistaken but it is hardly insane.

The possibility that the culture war and its character may resonate with any significant portion of the populace if the trial proceedings get out has got to terrify the Norwegian equivalent of the Nomenklatura. From their point of view, subverting the rule of law to protect themselves is a feature and not a bug.

Oh, and Dave …. I was under the impression that Washington state west of, say, Cle Elum was politically a People’s Republic. So civil commitment fits [smile] .

Norway has a history of its government declaring people psychologically unfit when it determines other existing laws are not up to the task — see the history of Nobel recipient Knut Hamsun, declared mentally impaired after he sympathized with National Socialist Germany. Also a good film exists about him.

According to William James (the American “Pragmatist” who was the favourate philosopher of the mass murderer) there is no such thing as objective truth or objective right and wrong.

“The right is just the expedient in our way of thinking”.

If there is no objective truth then if the Oslo mass murderer believes he was engaged in “war” (not in shooting unarmed civilians) that is up to him – there is no objective yardstick to judge the matter by.

And if there is no objective right and wrong – then the judgement of the Oslo mass murderer (that his actions were good) can not be questioned from any objective standpoint.

Nor is it just William James and the Pramatists.

David Hume (supposedly one the great philsophers of all time) said the following.

“Reason is, and ought to be, the slave of the passions”.

The Oslo mass murderer had a passion to murder a large number of people – so he used his reason to work out the best way to do so.

According to David Hume (who, I repeat, is considered one of the great philosphers of all time) there can be no question of real choice here – as reason is the “slave” of the passions.

And this is as it should be – as reason “OUGHT” to be the slave of the passions. In short even if did have a choice (which, according the David Hume, he did not) the Oslo mass murderer should have acted exactly as he did.

Because reason is (supposedly) the “slave of the passions” and it aslo “ought to be” the slave of the passions.

Ought from an is – I thought Hume did not approve of that (well perhaps he just did not approve of other people doing it).

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